High Court Hears Arguments On Low-level Waste

WASHINGTON — Does the federal government have the right to tell the states how to dump their low-level nuclear waste?

The Supreme Court grappled Monday with that politically volatile question in a New York State case that is being watched closely in Connecticut.

The court must decide if the federal government can order the states to find sites for disposing of low-level nuclear waste produced in-state without giving the states a way out.

The 1985 federal law at issue led to the identification of sites in South Windsor, East Windsor and Ellington as potential dumps for low-level nuclear waste generated in Connecticut.

Some justices said Congress had crafted a clever solution to a sticky political problem in enacting the law, which gives the federal government responsibility for the most potent nuclear waste, while the states have to cope with low-level waste, mostly from nuclear power plants.

If the states do not solve the problem on their own by 1996, the federal government will make them legally liable for all low-level waste produced within their borders, opening the way for large lawsuits.

The 1985 law was backed by all Connecticut's members of Congress at the time, including Lowell P. Weicker Jr., except for two House members: the late Rep. Stewart B. McKinney and former Rep. John G. Rowland, who are recorded in the Congressional Record as absent or not voting.

But the issue troubling people in states such as Connecticut is not the legal relationship between the federal and state governments, which was hotly debated by the lawyers in an hourlong argument at the high court.

It is the Not in My Back Yard syndrome.

Some justices could relate to this problem, too.

"It's like finding a location for a prison," said Justice Sandra Day O'Connor, herself a former state legislator. "We all agree we need these things, but nobody wants it in their states, their county, their city."

Peter H. Schiff, arguing for New York State -- and by extension

for states such as Connecticut, which have filed friend-of-the-court briefs opposing the law -- said the law was unique in the annals of state-federal relationships, and therefore unconstitutional.

"We know of no other law that mandates that states must take part in a particular activity," he said. "Usually Congress recruits states and gives them an option: `You regulate or we will.' "

However, Schiff acknowledged in response to a question from O'Connor that if Congress rewrote the law to say "no shipments could be sent out of state," it would withstand constitutional muster.

"It is important for states to determine when to undertake activities and where to place their resources," Schiff said. "The question is whether we have to do this according to the drumbeat of the federal government."

Lawrence G. Wallace, the deputy U.S. solicitor general, defended the law. While he acknowledged it was unique, he said Congress had crafted it after receiving a unanimous request from the National Governors' Association. He said the law gives states powers not normally given them by the Constitution by allowing them to ban interstate commerce in waste and cope only with their own low-level nuclear waste.

"All states are treated equally under this legislation," he said.

Justice Anthony Kennedy suggested wryly that the law was a chance for all states to be "equally disappointed."